[2025] EWHC 1706 (Comm)

In considering the expert evidence, I do not deal with the evidence of handling prior to the delivery to the warehouse in Lima given KLM’s concessions at the hearing referred to earlier, and the experts’ Joint Statement that:

“3.1

We agree that the cargo was delivered in sound quality and condition to KLM's ground handlers at Lima Airport”

“6.4

All documents submitted to us, give indication that the asparagus were packed in good condition, so no inherent quality or vice of the cargo is applicable.”

In considering the expert evidence as to the cause of the damage to the Cargo, it is also necessary to consider the allegations made by KLM regarding the defective wrapping of the Cargo in malla raschel (or rashel) and whether its use caused, or contributed to, the damage.

Wealmoor’s expert, Mr Samir Sarradj set out his expertise in biology and in investigating, evaluating and advising on disputes involving a range of food and agricultural commodities. In chief, he gave evidence as to the characteristics of asparagus (see earlier) and that:

In cross-examination by Mr Lawson, Mr Sarradj was questioned about the rate at which asparagus deteriorated and he accepted that the rate at which it was heating will affect the rate of respiration and if it is heated quickly, the rate of respiration will increase quickly. He did not agree that it would deteriorate significantly if kept between 2C and 8C and when it was pointed out that Fresh 2 meant keeping it above the optimum 0C-2C (see his 2.5.5), Mr Sarradj preferred to describe that range as “recommended”. He agreed some deterioration would be expected above 2C and that deterioration could only be slowed down. However, he pointed out that asparagus that did not deteriorate could not be found. He also said that 2C-8C was a very common temperature range used by airlines so that many fruits and vegetables were able to be stored during carriage without injury by heat.

With regard to the use of malla raschel mesh to wrap the Cargo, in the light of Mr François’ evidence, Mr Sarradj agreed that packaging should allow the keeping of cargo at the correct temperature and as cool as possible. The USA has stringent sanitary laws and the use of malla raschel is to prevent insects escaping, moving away from chemical interventions to the use of physical barriers. He considered the mesh allowed the exchange of air. He disagreed that the mesh was necessarily dense since insects were not difficult to keep in. He did not accept that the use of the mesh necessarily blocked cool air, whilst a plastic wrapping would, and he disagreed that the use of the mesh would create a ‘greenhouse effect” and, had it had that effect, he would have expected the temperature to have risen non-stop and for there to have been condensation. He did not expect the Cargo to have been wrapped in multiple layers of mesh since one layer would be sufficient to create the necessary physical barrier.

Mr Lawson suggested that the greatest rate of damage to the Cargo was caused during the initial loading phase at Lima, and Mr Sarradj agreed it would have been the most energy it received and that if the asparagus was at the temperatures recorded by Xsense then it would have experienced the greatest rate of respiration causing damage at that point.

Mr Sarradj accepted that damage may have begun to be caused in Lima but he maintained that damage was also caused by the interruption of cooling by the stopovers in Quito and Miami and as a result of the temperatures to which the Cargo was then subject. He said he could not be sure that the circumstances in Quito and Miami had compounded what was existing damage, though he could not rule out that if following the first exposure to the high ambient temperature in Lima the aircraft had gone directly to Amsterdam, the Cargo would not have come down in temperature due to the cooling in flight. The nature of asparagus would only cause a deterioration insofar as it was caused by the process of respiration, which was itself controlled by the temperature.

When asked by Mr Lawson to consider the condition of the other cargoes in the hold on arrival in Amsterdam, Mr Sarradj said it would be necessary to be able to correlate the loading operations and it could make a difference where in the hold the cargo was placed. He refused to infer that the problem experienced was specific to the Cargo and the fact there were no other claims were brought in respect of other perishables carried on the same flight did not mean there was no damage. Claims would be modest and not all would pursue them. He pointed out that no survey reports have been produced for the other cargoes.

Mr Sarradj said he doubted that the use of the malla raschel would have had any significant effect on the Cargo’s temperature. If it had been holding in the heat, the Cargo would be covered in condensation and he was familiar with condensation damage which occurs. While a greenhouse effect was a potential explanation, Mr Sarradj considered it more likely that damage was caused at Lima and it was being slowly dissipated in the aircraft when cruising before it was interrupted by the other stops.

KLM’s expert Mr André François did not give detailed evidence as to the characteristics of asparagus and did not profess to have the same biological expertise as Mr Sarradj. He considered that the cause of the deterioration in the Cargo was the packaging and in his main report stated:

“The large difference between the recordings measured among the asparagus by the recorder and recordings of sensors in the aircraft can be explained by the fact the open cartons were wrapped in earlier mentioned MR fabric under the usual plastic straps holding the cartons together. Inside this fabric heating of the asparagus occurred due to absence of fresh air and contact with refrigerated air. Due to this process the Xsense recorder is recording even more rising in temperature during the transit time at AMS and during the following transport in a refrigerated truck arriving at Heathrow airport January 13, 2021 09.21 hours … The recorder was stopped upon receipt by consignees January 14, 2021 01.32 hours last recording +24°C. This was matching with temperatures reportedly found by consignees being between + 18.50°C and + 34.50°C proving the temperatures recorded by Xsense recorder reflected the actual pulp temperatures of the asparagus underneath the fabric. If the recorder had been in contact with free air in the open cartons, it should have fluctuated with ambient temperatures during transport and not as visible, constant rising during transport.

It is evident that the asparagus suffered from absence of contact with refrigerated air and fresh air and became damaged by suffocation and high temperatures during heating of the asparagus.

The fabric prevented access to the air prevailing during transit, suffocation started, and heat produce resulted in further increase of the pulp temperature.

Having checked all photos made by consignees straight after arrival, they clearly show remains of this fabric which was previously around the cartons which must concern the relevant transport packing”

Having considered the evidence of the use of malla raschel, Mr François added:

“We attach a few photos showing correct packing in cartons and support by corner posts held together with straps. These photos are originating from Procedimiento de inspeccion del esparrago verde fresco' present among Wealmoor's disclosures (Appendix 5).

The usually applied corner posts / straps are also visible on ‘Instruction de seguimiento de temperatura en Plataforma’ also present among Wealmoor’s disclosures (Appendix 6).

This kind of packing enables proper breathing of the asparagus and contact with surrounding refrigerated air.

The kind of applied fabric mentioned as MR on the packing list and of which remains are visible on photos made by Wealmoor after receipt is uncertain.

In the ‘Procedimiento de inspeccion del esparrago verde fresco’ examples of fabric are show in black colour (Appendix 7) and on the website of Frioaereo fabric in green (Appendix 8). On the website of manufacturers Malles Rachel different qualities are visible (Appendix 9). The fabric visible on photos of the remains after receipt are black and seem similar to the ones with (90%). These are of the thickest quality with less ventilation purposes.

But only from these rather poor photos which were only made for the purpose of showing temperatures and not for showing original packing (only remains are present), the Undersigned cannot trace the exact material used.

In the experience of the Undersigned, some of the fabrics are also made for temperature isolation purposes with aluminium foil in combination with the MR fabric, opposing parties did not supply detailed information of quality or thickness, even stronger, presence of it was not reported at all.”

In conclusion he stated:

“I have to conclude, taking the damage pattern into consideration, that the kind of fabric is used not enabling proper ventilation and contact with surrounding refrigerated air, causing high temperatures recorded by the shippers recorder inside the fabric. The asparagus could not breath properly and internal heating started causing the alleged "rots, breakdown and melting tips together with foul odour … subject shipment was indeed defectively packed it is not a bare inference, because due to using a fabric around the cartons breathing and contact with surrounding refrigerated air was evidently prevented”

This point was repeated in a Note following the conclusions which included the following:

“Due to presence of the fabric, the recorder only slowly followed the lower temperatures in the aircraft as this refrigerated air is without cooling fans and could not reach the asparagus properly.

During the course of transport, after arrival at AMS and on carriage per truck trailer, the recorder started to record a rise in temperature produced by the asparagus themselves as so called heating occurred in absence of fresh refrigerated air

We conclude that the damage was caused by wrapping the pallets in fabric of which the thickness and isolation factor was evidently enough to cause suffocation, high temperatures, bad odour and rotting of the asparagus. This in combination with, in the booking foreseen and agreed, longer transit time via AMS, compared to a direct flight to LHR”.

In a Supplementary Report Mr François stated:

“In my report of 22 May 2024, I emphasized that there are many different types of malla raschel. Some are for protection against insects, others are to protect cargo against outside temperatures.

The exact quantity of the malla raschel that was used remains unknown as receivers removed it and did not inform surveyors about its existence.

Wealmoor has not established how the consignment arrived ex truck, i.e. whether it was still on the unit load device or on individual pallets.

Mr. Trylesinski states at paragraph 8 of his witness statement dated 12 November 2024 that "I do not recall whether it was us or our freight forwarder that added the mesh to this cargo on this occasion". Floridablanca has also not confirmed as to how the subject pallets were presented to KLM upon presentation for loading.

It leaves the possibility open that the freight forwarders, who assembled the pallets on the subject ULD PMC KL24017, applied different malla raschel covers or put extra wrapping around the consignment in addition to the usual cargo nets to stabilise the pallets on the unit load device.

It is my opinion that the covers/wrapping applied were so tightly woven that cold air in the aircraft and the truck trailer in addition to the outside temperatures in January could not come in contact with the asparagus. This resulted in the heating air of the asparagus not being able to escape in transit, resulting in the constant increasing of temperatures visible on the recorder.”

In cross-examination by Mr Gourgey, Mr François accepted that his specialism was in marine surveying but that he did some 20 to 50 surveys a year for KLM and other companies. He could not recall when he had last surveyed a shipment of asparagus, possibly about 3 years previously.

Mr François initially firmly rejected the suggestion that the use of malla raschel was standard practice for consignments of asparagus to the UK or EU. However, he was taken to the documentation which showed that 7 other consignments of asparagus on the same flight were shown on Frio Aereo’s cargo registration document dated 10 January 2021 and were also recorded as being wrapped in malla raschel. He first answered that it was not standard practice and that the wrapping had been applied by the same shipper but, once shown the documents (which he appeared not to be familiar with), he then accepted they were consignments from different shippers. The Frio Aereo cargo entry record for 9 January 2021 (Bundle B p. 113 and Appendix 1 to Mr François’ first report) showed a standard abbreviation of “MR” for “malla raschel” and “SM” (“sin mala”) for “without malla” on its printed form. When he was asked about the lack of reference to the other use of malla raschel in his reports he said he considered it “not relevant” and maintained he had no way of checking it.

Mr François’ attention was drawn to Ian Trylesinski’s second statement as to the common usage by Wealmoor of malla raschel and the reasons for its use. Mr François accepted that malla raschel was suitable if applied in the ordinary way but drew attention to the fact that there was no information as to how it had been applied. He accepted that he had inferred from the damage pattern that the mesh had been incorrectly applied. He confirmed in response to a further question that his conclusion was based on a bare inference, and agreed that it was based on the presence of the fabric and that “any fabric is detrimental”. For him it was enough that the mesh was on the Cargo, given “the temperature rising all the time” and that it had led to his conclusion, though by a bare inference.

Although Mr François expressed uncertainty about the exact location of the Xsense recorder, he agreed it was inside the malla raschel and that the malla raschel had openings. He agreed that the wrapping did not prevent cooling and that it was not airtight. When his attention was drawn to the fact that on removal from the warehouse, the Cargo was not recorded as being at the same temperature as the outside air, he said that this was due to cold air escaping from the asparagus.

Mr François also agreed that if the Cargo had been refrigerated at 2C-8C on the ground at Lima, its temperature would have come down much quicker, although he pointed out that the cooling in the cargo hold was not as a result of forced air circulation. In respect of evidence of the Cargo temperature lowering, he agreed that this was the result of it coming into contact with cold air but that if it had not been for the malla raschel it should have lowered much more.

With respect to the question of suffocation, Mr François did not agree that if it had happened this would not have increased the rate of respiration even though it would have meant the production of more carbon dioxide and that it did not occur on route to Quito. He did not consider that there was any damage occurring at all between Lima and Quito or between Quito and Miami.

When it was suggested to Mr François that he had not commented in his report on the effect of high ambient temperatures on the rate of respiration, he declined to answer but then ventured the view that in the periods of time concerned it had “hardly any influence”. When asked about the rise and fall in temperatures and that there was only a steady rise after Amsterdam, he said that it was very poor evidence of the condition of the asparagus. Suffocation, he thought, started around Miami and his answer to the question regarding a fall in Cargo temperature repeated that suffocation would not have happened if there had been no malla raschel around it.

Mr François agreed that there had not been a constant increase in Cargo temperature, contrary to what he had stated in his second report, although he did not accept that decreases were due to hot air being able to escape from the asparagus.